Sunday, March 8, 2009

Obama's "Interesting" Comments About Rendition

President Obama recently completed a 35-minute interview with the New York Times. During the interview, Obama addressed several domestic and foreign policy issues. A very wasteful moment occurred when the interviewer asked Obama if he was a "socialist"? When he said "no," the desperate interviewer asked: "Is there anything wrong with saying yes?"

Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.

Obama on RenditionDuring Obama's interview with the New York Times, the following exchange concerning rendition occurred:

Q. Leon Panetta has said that we’re going to continue renditions, provided we’re not sending people to countries that torture. Why continue them at all?

A. Well, I think that you’re giving a slightly more definitive response than Director Panetta provided, but what I’ll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize – could be – because we haven’t made a determination yet, where let’s say we have a well-known Al Qaeda operative, that doesn’t surface very often, appears in a third country, with whom we don’t have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don’t torture, and that we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.

How all that sorts itself out is extremely complicated because it’s not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.

Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.

II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.

A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.

III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."

This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.

Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.

Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.

Final ThoughtsThe Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.

Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).

Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.

8 comments:

I appreciate all the effort you put into parsing and analyzing what Obama's words and actions indicate and will ultimately mean.

However, I have little faith that he himself really has any idea. I get the feeling that he is in a bit over his head. Dinner with Oprah and taking in some NBA with the Wizards, seems to be more his cup of tea.

I’m with dualdiagnosis on this one. It sounds like President Obama was avoiding getting pinned down based on Panetta’s statements and I get the feeling this is an issue that he doesn’t have a great deal of passion for – at least not like some of the domestic policy issues.

It's nice that you point this out since everyone else is focusing on the socialist line.

Well, Brad, Obama certainly had a lot of passion for this during the Democratic Primaries. Also, his international appeal and popularity among the left rested in large part upon their perception of him as a peace advocate, anti-torture president, etc. This is where all of the he will "change our reputation in the world" language came from.

I think he's a moderate on these issues -- not that he does not care about them (or know anything about them - as DD said). He will probably come close to Bush in terms of the substance of his policy, but without any of the horrific legal memoranda that have recently emerged.

President Obama is a smart guy, who probably belongs in academia or Congress, rather than any type of executive office, let alone president.

I never understand how liberals get away with refusing to answer whether they are liberal. I guess the liberal MSM lets them get away with it and, for that matter, any intelligent person who is interested can tell that anyone who ducks the question is a liberal.

Anonymous: liberal does not = socialist. Obama smartly refused to fall for the reporter's games.

Also - the MSM is not liberal. It is opportunistic and profit-seeking. As such, it goes for anything that is "cool" and popular. Remember, the so-called liberal media was literally in the tank with Bush on the war. The media switches between Republicans and Democrats depending upon the pulse of the country.

I said nothing about liberal = socialist. What Obama refused to do is answer the question and tell the truth. You call it a game, but any honest person has no problem in stating their predominant political view, only liberals lie about it.

You refuse to see the reality of the liberal predominance of the persons in the media. If you spend any time around a journalism school, or just look or listen to the libreal bigwigs (and their underlings) in the media, you must know that liberals predominate.

The MSM takes their cues from liberal democratic politicians. The democratic politicans, to a significant extent, supported the war, so the MSM did not oppose it.

If you doubt about due taking, look at the media uproar about Rush Limbaugh over the past several weeks after Emanuel, Carvell and Begalla sprung their plan. By the way, what is Stephenapolis doing in those daily calls with Eamanuel, Carvell and Begalla?

Obama never subscribed to any political ideology. Accordingly, he did not lie. Also, the reporter was not asking a serious substantive question. If Obama identified as a socialist, don't you think we'd know that by now?

Also - I think that political labels are very misleading. There are people who claim to be conservatives, but other conservatives do not think they are. "Liberal" has been stigmatized but a lot of people really don't know what the term means. If anything, a lot of people do not agree on what the term means. So, any smart politician will resist such labels and keep moving.

You say that only "liberals" lie about their political views. I dispute that. McCain tried to run as a conservative, but he used to be a moderate. Mitt Romney was a Massachusetts moderate, but almost ran to the right of Mike Huckabee.

There are many ways to "lie" about your real beliefs. To the extent that the very term liberal is stigmatized and distorted, I think it is not a surprise that politicians flee from the very label -- but not the policies. But we have seen Republicans embrace the "conservative" brand, but then try to appear moderate. When McCain went on Ellen and stumbled around trying to sound like he supports gay rights, was that any different than Obama's refusal to state an ideological preference?

Finally, I have blasted the media incessantly on this blog. Virtually all of my anti-media essays demonstrate how the media demonizes conservatives.

You are making the mistake of only looking at the media behavior today. The media is biased against certain Republicans and in favor of certain Democrats. The way the media treated Hillary Clinton during the primaries demonstrates that the bias is not about ideology but more about popularity.

The media had fun picking on Gore and Kerry - to Bush's benefit. The media loved Reagan, but Bush I suffered due to Dan Quayle. The media dug for dirt on Clinton just as much as Ken Starr. And it smacked down Dukkakis.

A majority of House Democrats voted against the War and in the Senate the vote was 29-21. Republicans were virtually unanimous in their support for the war. To say that the media went along with it because of the Democrats simply distorts the history around it. The New York Times and the Washington Post published articles after the war became less popular in which both admitted to suppressing anti-war articles, reducing them to back pages, and rushing pro-war stories to print without subjecting them to sufficient scrutiny. I would say that Bush, Colin Powell and possibly Tony Blair did more to generate support than any other characters.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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